Monday, May 11, 2009

In Choosing Souter's Replacement, Obama Should Follow the Lead of ... George W. Bush?

[This article also appears on You can access it from my author page here.]

If someone asked me what was the single most important thing I learned in law school, it would take me all of a nanosecond to answer: U.S. Supreme Court justices are far more powerful in shaping American society than the average person realizes. As these officials are appointed and not elected, and serve for life, the selection of a justice to the Court is one of the most important decisions a president will make during his time in office.

As a former constitutional law instructor at one of the top law schools in the country, I have full confidence that President Obama understands the immense importance of selecting the right replacement for David Souter. My hope is that as he goes through the process, he uses as his guide the most unlikely of mentors: George W. Bush.

No, of course I don't want Obama to opt for the kind of right-wing, religiously conservative, out-of-touch-with-the-values-of-the-American-people jurists that Bush selected. But there are (at least) three important lessons Obama should take from Bush's two forays into choosing a justice for the Supreme Court:

1. The Younger, the Better
When we elect a president, we know that in four years, if we think we've made a mistake, we can take a do-over (just ask George H.W. Bush and Jimmy Carter). And no matter how popular a chief executive is, after eight years, that leader is gone.

But Supreme Court justices serve for life. Consider, for example, that William O. Douglas was sworn into office before the U.S. entered World War II (April 17, 1939) and served until after the fall of Saigon (November 12, 1975). During Douglas's stint on the Court, he watched the beginning and end of three wars, and the country went from radio to color television, from ship service to Europe to trans-Atlantic flights, and from segregation to the Civil Rights Act and the Voting Rights Act (not to mention from African Americans not allowed in the Major Leagues to an African-American player becoming the all-time home run leader).

In other words, if a president plays his cards correctly, his choice of a justice can leave an impact on the country for decades after he or she leaves office.

This is something that Bush seemingly realized. Chief Justice Roberts was only 50 when he took his oath of office, meaning that it's plausible he will serve for 25 years or more. Bush's second appointment, Samuel Alito, was a bit older, 56, but that means that 20 years on the bench is entirely possible for him. So two of the Court's nine votes will be in the hands of right-wing extremists when Malia Obama becomes eligible to run for the U.S. House of Representatives in 2023.

Obama can go Bush one better and appoint a justice in his or her early to middle 40s, giving the candidate the opportunity to shape American policy for 30 to 40 years. This approach would not be unprecedented. Extreme right-winger Clarence Thomas was a mere 43 when the first President Bush selected him in 1991.

If George W. Bush was able to influence the Court for the next 20 years, Obama certainly should do the same.

2. The Further to the Left, the Better
I'm all for Obama's bipartisan efforts, even if they have yielded little in return. That's because I'm all for taking the high ground. In the end, I feel like it pays off, with the electorate, it would appear, increasingly able to sniff out nonsense. And I fully realize that whenever critics (and I've been guilty of this) have urged Obama to act more confrontationally than he has, in the end, his measured approach has usually paid off.

But this is different. And yes, I'm sure observers have written that about every issue Obama has faced. But the selection of a new Supreme Court justice really is objectively different.

Unlike Congress, which has some balance to it, with an ideological breakdown that is at least somewhat in sync with the ideological outlook of the country, the Supreme Court has been completely skewed by the Republican domination of the presidency over the last 28 years. Right now, there are four extremely conservative justices on the Court (Roberts, Alito, Thomas and Antonin Scalia) with values that are, based on virtually every poll and recent electoral results, far to the right of the average American. A fifth justice, Anthony Kennedy, votes with the four arch conservatives more often than not. And these justices are on nothing short of a crusade to remake the country in their narrow-minded image, running roughshod over decades of precedents in the process. (A sampling: In the last two years, the Court has overturned a handgun ban in Washington, D.C. while finding, for the first time, an individual right to bear arms in the Second Amendment, reversing a 70-year-old precedent to the contrary; explicitly overturned a 90-year-old antitrust precedent in a decision favoring big corporations; and essentially gutted the long-held exclusionary rule for using evidence in criminal trials obtained during illegal searches; not to mention issuring very conservative decisions on issues like campaign finance reform, partial-birth abortion and collective bargaining.)

The Republicans love to talk about the sins of liberal "activist judges," but the Roberts court has shown what a dishonest farce that charge really is. In its disregard for precedent and its completely open pursuit of a right-wing agenda, the current four extreme conservatives on the bench are every bit as "active" as any progressive judge in crafting the law to attain the result they are looking for. What Republicans really don't want is judges who don't share their conservative views. They are certainly allowed that point of view, but to attach an epithet to the progressive position is nothing short of a gutter campaign strategy. Conservative judges have no moral high ground; they are no less advocates for a point of view than their progressive colleagues are.

Only, thanks to 20 years of Republican presidential rule since 1981, there are a lot more conservatives than progressives on federal benches. And it's time for that to change. To balance the extreme-right slant of the Court, an injection of some strong, progressive voices is needed. A moderate approach here just won't work.

Bush didn't look for any moderation at all in his selections. He chose two extremely conservative federal appellate court judges to continue their right-wing ways on the Supreme Court. Obama should take the exact same approach, instilling progressives to balance out Bush's conservative picks.

3. He/She Better Be Qualified
Once someone is nominated to serve as a justice on the Supreme Court, that person has only won half the battle. To actually make it to onto the Court, the nominee has to secure approval in the U.S. Senate. There is no doubt that senators opposed to a nominee's political slant have tried to keep that nominee off of the Court, but the experiences of Bush's selections are instructive as to what a minority in the Senate can and cannot accomplish when the president shares a party with the majority.

When Bush nominated Roberts, it was pretty clear he was a conservative in the Scalia mode. Sure, the nominees always do a song and dance about having no set ideas on issues like abortion or other hot-button topics, but it's not like there is much of a mystery as to what the nominee believes, especially when, like in the case of Roberts, the nominee is a sitting federal appellate judge who had written and joined in opinions.

But Roberts had a stellar record of career achievement. He is a graduate of Harvard, for both undergrad and law school, and he clerked for Judge Henry Friendly of the U.S. Court of Appeals for the Second Circuit (a major court that covers New York) and then-Justice William Rehnquist of the U.S. Supreme Court, before working for the Justice Department and eventually making his way to an appointment as a judge on the U.S Court of Appeals for the D.C. Circuit, an important court in examining big federal issues.

When another opening on the court came up shortly thereafter (Roberts had originally been nominated to replace retiring Justice Sandra Day O'Connor, but when Chief Justice Rehnquist died less than two months later, Bush shifted Roberts to that position), Bush went for someone with far less impressive constitutional law credentials, White House Counsel Harriet Miers. A graduate of Southern Methodist University Law School and a former commercial litigation partner with a Dallas law firm, before becoming part of Bush's inner circle, Miers's career had certainly been successful, but it was not the kind of background one would look for in a Supreme Court justice. The result was that there was an opening for the Democrats to oppose the appointment of Miers. And less than four weeks after the nomination, she was forced to withdraw when it was clear her approval by the Senate was far from certain.

Bush's next selection, Alito, was more like Roberts. With more than 15 years as a judge on the U.S. Court of Appeals for the Third Circuit, and a resume that included serving as a clerk for a Third Circuit judge and working as an assistant U.S. attorney, assistant attorney general and assistant solicitor general, Alito was unquestionably qualified to be a Supreme Court justice. So he was able to make it through the Senate, with four Democrats joining all but one Republican in confirming his selection.

The lesson is that Bush was able to get a candidate that was ideologically repugnant to Democrats through the confirmation process, but he could not succeed with someone not viewed as qualified.

(As an aside, I am not defending Alito and Roberts. If I had been a senator, I would have voted against both of their appointments based on their extremely conservative approach to the law. My point is strictly one on strategy: That it's harder to oppose a qualified candidate based on ideology than it is to go against a nominee based on a lack of credentials.)

With Democrats controlling 59 votes (and maybe 60 if Al Franken is seated) in the Senate, the lesson of Bush's appointments is clear: Obama needs to select someone with an unassailably qualified resume. While a progressive candidate should be able to make it through confirmation despite angering the Senate minority (as Roberts and Alito did), a lack of qualification is the only lifeline to the Republicans in bringing the choice down.

If President Obama follows George W. Bush's lead in choosing a replacement for David Souter -- a young progressive with a traditionally impressive resume -- he will have done a good job in carrying out his responsibilities. And it may be the last time he will ever be able to look to Bush for help on how to do something right.